VIRENDRA PRASAD NIGAM Vs. KALIKA SWAROOP

JUDGEMENT

(1.) This revision has been filed under Section 25 of the Provincial Small Causes Courts Act against the judgment and decree dated 27.8.99, passed by Sri S. P. Singh, IVth Additional District Judge. Barabanki in S.C.C. Suit No. 3 of 1984. whereby the suit of the plaintiff-opposite party for possession after ejeclment of the defendant-revisionist in respect of the building in suit detailed in the plaint as well as for arrears of rent and mesne profits was decreed with costs.

(2.) Learned counsel for the revisionist as well as learned counsel for the opposite party were heard. This suit was earlier decided on 30.5.90 by the then IVth Addl. District Judge. Barabanki, acting as Judge Small Causes Court and the plaintiff's suit was, decreed at that time also for ejectment and for recovery of arrears of rent in respect of the shop in dispute. The defendant at that time also filed Civil Revision No. III of 1990 which was decided by this Court on 18.11.98. The case was remanded to the Court below for decision afresh in the light of observations made in the body of the judgment. The learned trial court had to take into consideration the question relating to the age of construction in accordance with the provisions of Section 2 of the Act. After the remand order the trial court recorded additional evidence again and decided the suit with particular reference to the remand order. The only question which is crucial to the present case is whether the building in suit is governed by the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (Act No. 13 of 1972) (hereinafter referred to as the Act). If the building is governed by the Act, then the suit of the plaintiff was to be dismissed and if it is not so governed, then the suit shall be held to have been rightly decreed. Therefore, it has to be seen as to whether the building in suit is covered by the Act or not. In the remand order, reference was made by this Court to the provisions of Section 2 which are relevant to the case. The provisions relevant to the case are as follows :

(3.) The learned trial court considered these things in detall with reference to the provisions of Section 2 of the Act and held that the building is a construction after the year 1978 and, therefore, held that U. P. Act No. 13 of 1972 does not apply and tenancy having been determined in accordance with law, decreed the suit for possession after ejectment of the revisionist. For this the learned trial court discussed the oral as well as documentary evidence led by the parties. He took into consideration the plan of construction passed by the Municipal Board, paper No. 37C, dated 3.2.78 and renewal thereof 19C as well as the receipts of the purchase of cement, saria etc.. Paper Nos. 80 and 95C. He also took into consideration the copies of the Assessment Registrar of the Municipal Board, Barabanki for the financial years 1973-78, Paper No. 29C and for the years 1984-89. Paper No. 130C. He also referred to the agreement dated 3.3.79, Paper No. 46C on which date this shop in suit was occupied by the defendant as a tenant. He also considered the report of the Commission issued by the Court. Paper No. 109C. It was undisputed that this building bearing Municipal No. G-1282 was let out to the defendant on 3.3.79 at the rate of Rs. 300 per month as rent and that agreement of the same date was also executed. It was found that this shop in suit was of the dimensions of 7' x 7' during the times of Jagvendra Pratap Bahadur Singh, the father of the plaintiff. These all shops were 71/2 x 71/2. According to the defendant himself, the present length and breadth of the disputed shop is 81/2" x 171/2'. In the report of the Commissioner. Paper No. 109C shop in suit measures 8'41/2" x 18'6". The map 37C makes it clear that the sanctioned map dated 23.9.78 was renewed on 23.6.79. In the map passed at the time of the father of the plaintiff the measurement of four shops was 71/2' x 71/2. These shops were constructed with much bigger measurements. So there was bound to be a difference of the measurement of the shops existing at the time of the father and that of after the sanctioned plan during the time of the plaintiff. The learned trial court, therefore, held that this construction of bigger measurement was done after the year 1978. Help was also taken by the learned trial court in this connection of the assessment in the Municipal record where the letting value of the building in the assessment years 1973-78 was only Rs. 720, whereas in the years 1984-89, the letting value, according to the assessment register 130C was enhanced to Rs. 12,480.00. It was, therefore, rightly inferred that this obviously was done after the new construction according to the new sanctioned plan. A definite finding was, therefore, given that the shops were constructed, after 1978 and the disputed shop was constructed in the year 1979. When there is a definite finding that the construction was made in the year 1979, then the controversy stands solved. The construction having been held of the year 1979 and the shop having been let out on 3.3.79 appears to be conclusive. Explanation I to the exception quoted above clearly says that in the absence of any report of construction and in the absence of record or assessment, the construction of a building shall be deemed to have been completed on the date on which it is actually occupied. The much enhanced letting value was recorded in the Municipal records in the years 1984-89 and not in the assessment of the years 1973-78. There is nothing to show that the plaintiff had submitted any completion report to the sanctioning authority or the local authority had recorded the completion or the assessment immediately after the construction. Under these circumstances, the learned lower court was quite justified to read the evidence as it is and held that it was a new construction and the building was constructed after the year 1978. The learned lower court was justified in giving this finding of fact on the basis of material on record. The learned lower court did not lose sight of the provisions of Section 2 of the Act while dealing with the matter in controversy. The learned lower court had no option but to give this finding because no other finding was possible from the record. The finding of fact arrived at on the basis of the evidence on record cannot be set aside. The finding on this crucial point is perfectly in accordance with law. The finding being according to law is to be maintained and confirmed. The fate of the case depended on this point of the construction which has been found above to have been decided correctly by the trial court and, therefore, the revision has got no force and has to be dismissed.